NOT TO BE PUBLISHED 

93-ORD-136

December 1, 1993

In Re: Edward Brady/Department of Corrections

OPEN RECORDS DECISION

This matter comes to the Attorney General as an appeal from the Department of Corrections' denial of Edward Brady's request of October 20, 1993 to inspect records and documents in the custody of the Department.

In his letter of October 20, 1993, addressed to the chairperson of the Parole Board, Mr. Brady requested access to letters or telephone inquiries concerning prior parole considerations and any written responses that the Parole Board may have issued to private citizens, Commonwealth's Attorneys, or families of his victims. In addition, he asked whether anyone had filed victim impact statements pursuant to KRS 439.340 relative to crimes in which he was involved.

In a letter to Mr. Brady, dated October 27, 1993, Ms. Karen DeFew Cronen, Administrator of Offender Records, replied on behalf of the Department of Corrections and advised as follows:

In his letter of appeal to this office, received November 3, 1993, Mr. Brady makes charges and allegations which cannot be dealt with within the context of an appeal under the Open Records Act. He also maintains in part that the Open Records Act did not exist when he was committed to the Department of Corrections in 1976 and all documents in existence prior to 1986 must be made available to him.

The Kentucky Open Records Act (KRS 61.870 to KRS 61.884) has been in existence since 1976. Although the Act has been amended on several occasions the exceptions now codified as KRS 61.878(1)(h) and (i) have been in effect since then. Those exceptions to public inspection provide as follows:

(h) Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency;

(i) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.

In 93-ORD-1, a copy of which is enclosed, we said that a letter from a member of the judiciary to the Parole Board setting forth the judge's opinion as to whether a person should be paroled is a preliminary document expressing personal opinions and recommendations, and not subject to public inspection unless incorporated into or made a part of the Parole Board's final decision on the matter. In addition, we also stated that a letter from a private person to the Parole Board relative to a possible parole can be characterized as correspondence with a private person which can be exempt from public inspection under KRS 61.878(1)(h) and (i) unless incorporated into or made a part of the Parole Board's final action relative to eligibility for parole.

We conclude that on the basis of the facts available in this appeal, KRS 61.878(1)(h) and (i) authorize nondisclosure of the records and documents requested. The Department of Corrections has not violated the terms and provisions of the Open Records Act by its refusal to furnish Mr. Brady with copies of records and documents wherein individuals set forth personal opinions and recommendations as to whether a prisoner should be paroled.

Mr. Brady may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. The Attorney General shall be notified of any actions filed against the Department of Corrections pursuant to KRS 61.880(3), but he shall not be named as a party to these actions or in any subsequent proceedings.

CHRIS GORMAN

ATTORNEY GENERAL

Thomas R. Emerson

Assistant Attorney General

(502) 564-7600

sjj/1572

Copies of this decision

have been mailed to:

Edward Brady, #30478

Luther Luckett Correctional Complex

P.O. Box 6

LaGrange, Kentucky 40031

Karen DeFew Cronen

Administrator, Offender Records

Department of Corrections

Division of Administrative Services

State Office Building

Frankfort, Kentucky 40601